DocketNumber: 12324
Citation Numbers: 35 Conn. App. 646
Judges: Heiman, Schaller
Filed Date: 8/30/1994
Status: Precedential
Modified Date: 9/8/2022
The plaintiffs
The following facts are necessary for a proper resolution of this appeal. Fairfield University owns 13.4 acres of land located west of North Benson Road in the town of Fairfield. The plaintiffs own land that is within a radius of 100 feet of the subject property. The land is zoned to permit single-family detached dwellings. The university submitted an application to the defendant commission to resubdivide the land into forty building lots. The university also filed an application for a special permit to excavate and fill the land. The plaintiffs intervened in the action pursuant to General Statutes § 22-19 (a).
I
The plaintiffs first claim that the trial court improperly found that trees and wildlife are not natural resources under General Statutes § 22a-19. The following facts are necessary for a proper understanding of this issue. The plaintiffs intervened pursuant to § 22a-19 (a)
“Initially, we note that the trial court’s decision will not be reversed unless it is clearly erroneous. Practice
The legislative history does not indicate the intent of the legislature to include trees and wildlife within the term “natural resources of the state.” See 14 S. Proc., Pt. 3, 1971 Sess., pp. 1082-97; 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 733-65. Even though the legislative history does not shed light on the intent of the legislature, the Regulations of Connecticut State Agencies along with other statutory provisions indicate that the legislature meant to include some trees and wildlife within the term natural resources. See Red Hill II, supra, 212 Conn. 735-36. The department of environmental protection’s regulations state that it was created to manage, protect and preserve “the air, water, land,
Even though trees and wildlife are included as natural resources, the types of trees and wildlife included
II
The defendant next claims that the trial court improperly found that the proposed subdivision was not a culde-sac as defined in § 2.1.6
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The plaintiffs claimed in the trial court that the plan violated § 2.1.6 because the street is a cul-de-sac that provides access for more than ten building lots. The trial court found that Mailands Road is not a cul-desac. Specifically, the trial court found that the subdivision creates three separate intersecting streets with one label, that each street is not closed at one end, and that the shape of the horseshoe serves the purpose of the ten lot requirement by giving emergency vehicles access to all land.
Although the commission did not comment on the issue, we conclude that it found that Mailands Road
Ill
The plaintiffs next claim that the trial court improperly determined that the commission did not act unreasonably, arbitrarily or illegally by finding that the proposed subdivision complied with the town regulations because the plan did not provide adequate drainage under §§ 1.1.8
At the outset, we note that the commission acted in its administrative capacity. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). As such, it “has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance. . . . If it does not conform as required, the plan may be disapproved.” (Citations omitted; emphasis added.) Id.; see Friedman v. Planning & Zoning Commission, 222 Conn. 262, 267, 608 A.2d 1178 (1992). Thus, if we conclude that the trial court correctly found that Fairfield University complied with the applicable zoning regulations, we must conclude that the application approval was not unreasonable, arbitrary or illegal. If we conclude that the trial court improperly found that Fairfield University complied with the regulations, we must determine whether
A
DRAINAGE
The Fairfield subdivision regulations require that the storm water pipes be at least twelve inches in diameter “as will in the judgment of the Town Engineer be sufficient to properly carry storm water expected to enter the pipe from the proposed subdivision and from other properties when developed which normally drain across the area of the proposed subdivision.” Fairfield Subdivision Regs. § 3.4.1. The town engineer submitted a memo to the commission stating that “the 15 inch pipe size on the eastern portion of Mailands Road Loop and the 18 [inch] connection to the detention pond appear to be undersized for a ten year storm frequency. Please upgrade sizes or submit calculations.” At the public hearing, Fairfield University asserted that the plan was adequate. In the commission’s approval of the subdivision plan, the commission adopted verbatim the engineer’s statement as a condition for approval without providing a detailed finding of drainage. The trial court found that the commission’s approval was not illegal because the condition set by the commission was not a finding by the commission that § 3.4.1 was not met. Instead, the trial court found that the commission found that the drainage was adequate for “storm water that . . . normally drains across the area of the proposed subdivision” and that a ten year storm would generate more than normal conditions. We agree with the trial court.
The commission approved the plan with the condition that the drainage be upgraded to meet the needs
B
WOODED AREAS
Section 1.1.3 of the Fairfield subdivision regulations requires: “A preliminary map shall be submitted showing . . . the location of principal wooded areas.” The regulations do not require that depiction in the final map. Fairfield Subdivision Regs. § 1.3.1. The parties concede that the preliminary map, which was also submitted as the final map, did not depict the location of principal wooded areas. Thus, Fairfield University did not comply with the applicable subdivision regulations. We must then determine whether the record supports the trial court’s finding that the commission’s approval was not unreasonable, arbitrary or illegal on the basis of the evidence before the commission in approving the plan without conforming to the applicable regulations. See Friedman v. Planning & Zoning Commission, supra, 222 Conn. 267; Reed v. Planning & Zoning Commission, supra, 208 Conn. 433.
The trial court found, and we agree, that the commission had before it evidence of the principal wooded areas, even though this evidence was not contained in the preliminary map. Fairfield University conceded at the public hearing held by the commission that the land
C
DANGER TO HEALTH AND SAFETY
Section 1.1.8 of the Fairfield subdivision regulations provides that “other evidence shall be submitted establishing that the land to be subdivided is of such character that it can be used for building purposes without danger to health or the public safety . . . that any proposed street shown on the subdivision plan is in harmony with existing or proposed principal thoroughfares shown on said Master Plan especially in regard to safe intersections with such thoroughfares.” The plaintiffs claim that there was no “other evidence” that Mailands Road would be in harmony with North Benson Road in regard to the intersection of the two roads. Contrary to this assertion, the trial court found that at the public hearing Fairfield University’s attorney responded to questions from the commission about traffic and the proposed intersection of Mailands Road and North Benson Road.
D
OPEN SPACES
Section 2.3 of the Fairfield subdivision regulations provides that the “open spaces for parks, playgrounds, or recreational areas shall be provided in places deemed proper by the Commission.” The plaintiffs claim that the failure by Fairfield University to provide open spaces was per se fatal to the application. The trial court found, however, and we agree, that this position is incongruous to the plain language of the regulation. The regulation clearly allows the commission to determine the amount of open space required in the subdivision plan as a condition of approval. As we have already stated, the burden is on the plaintiffs to show that the commission acted improperly. Shailer v. Planning & Zoning Commission, supra, 26 Conn. App. 25-26. The plaintiffs claim only that the commission acted improperly because of the overall environmental concerns associated with the property. The plaintiffs, though, neither specify the environmental concerns nor point to specific evidence that would
IV
The plaintiffs next claim that the trial court improperly determined that the commission did not improperly apply the legal standard for determining off-site traffic safety. Specifically, the plaintiffs claim that the commission viewed off-site traffic as irrelevant under TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 532-33, 577 A.2d 288 (1990), and Sowin Associates v. Planning & Zoning Commission, 23 Conn. App. 370, 580 A.2d 91 (1990), cert. denied, 216 Conn. 832, 583 A.2d 131 (1991). Instead, the plaintiffs argue that the commission should have followed Friedman v. Planning & Zoning Commission, supra, 222 Conn. 262, which clarified TLC and Sowin by stating that the commission must consider traffic and intersection safety when the regulations provide for such a consideration. See Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 616, 610 A.2d 1205 (1992). The commission’s decision does not indicate the standard employed by it in determining that traffic safety did not require disapproval of the application. “Because public officers, acting in their official capacities, are presumed, until the contrary appears, to have acted legally and properly . . . the burden on such a claim rests upon the person asserting it.” Fonfara v. Reapportionment Commission, 222 Conn. 166, 177, 610 A.2d 153 (1992). The plaintiffs provided no evidence to the trial court or to
The judgment is affirmed.
In this opinion Spear, J., concurred.
The plaintiffs are Anthony J. Paige and Candace D. Paige.
The defendants are the town plan and zoning commission of Fairfield, the town of Fairfield and Fairfield University.
General Statutes § 22a-19 provides in pertinent part: “(a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”
See footnote 3.
General Statutes § 22a-19 (b) provides: “In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”
General Statutes § 22a-6a (a) provides: “Any person who knowingly or negligently violates any provision of section 14-100b or 14-164c, subdivision (3) of subsection (b) of section 15-121, section 15-171, 15-172, 15-175, 22a-5, 22a-6, 22a-7, 22a-32 or 22a-39, chapter 441, section 22a-69 or 22a-74, subsection (b) of section 22a-134p, section 22a-162, 22a-171, 22a-174, 22a-175, 22a-177, 22a-178, 22a-181, 22a-183, 22a-184, 22a-190, 22a-208, 22a-208a, 22a-209, 22a-213, 22a-220, 22a-225, 22a-231, 22a-336, 22a-342, 22a-345, 22a-346, 22a-347, 22a-358, 22a-359, 22a-361, 22a-362, 22a-383, 22a-384, 22a-385, 22a-387, 22a-401 to 22a-405, inclusive, 22a-416, 22a-417, 22a-424 to 22a-433, inclusive, 22a-447, 22a-449, 22a-450, 22a-451, 22a-454, 22a-458, 22a-461, 22a-462 or 22a-471, or any regulation, order or permit adopted or issued thereunder by the commissioner of environmental protection shall be liable to the state for the reasonable costs and expenses of the state in detecting, investigating, controlling and abating such violation. Such person shall also be liable to the state for the reasonable costs and expenses of the state in restoring the air, waters, lands and other natural resources of the state, including plant, wild animal and aquatic life to their former condition insofar as practicable and reasonable, or, if restoration is not practicable or reasonable, for any damage, temporary or permanent, caused by such violation to the air, waters, lands or other natural resources of the state, including plant, wild animal and aquatic life and to the public trust therein. Institution of a suit to recover for such damage, costs and expenses shall not preclude the application of any other remedies.”
The dissent proposes the adoption of the definition contained in the Minnesota Environmental Rights Law. The adoption of this definition is antithetical to the teaching of Red Hill II, supra, 212 Conn. 727. The dissent states that its definition will not frustrate the teaching of Red Hill II because General Statutes § 22a-19 (b) still requires the consideration of alternative plans only when the commission determines that it is reasonably likely that the project would affect natural resources of this state. The dissent’s explanation of how his definition complies with the teaching of Red Hill II, however, misapprehends our Supreme Court’s language. Red Hill II is not concerned with developers being actually subjected to submitting alternative plans, but with the potential that developers will be required to submit alternative plans. The dissent’s definition will potentially require every subdivision applicant to submit alternative plans.
Since we have independently reviewed the record before the commission, the dissent’s consternation that the plaintiff will be denied review of the record before the commission is unfounded.
Section 2.1.6 of the Fairfield subdivision regulations states that a culde-sac is a “street closed at one end by building lots and which will not be extended in the future.”
Section 1.1.8 of the Fairfield subdivision regulations provides in pertinent part: “Other evidence shall be submitted establishing . . . that proper provision will be made for drainage.”
Section 3.4.4 of the Fairfield subdivision regulations provides: “The discharge of all storm water shall be into suitable streams or rivers or into Town drains with adequate capacity to carry the additional water.”
Section 1.1.3 of the Fairfield subdivision regulations provides in pertinent part: “A preliminary map shall be submitted showing . . .thelocation of principal wooded areas. The map . . . shall be submitted at least three days prior to the meeting at which they are to receive consideration.”
Section 1.1.8 of the Fairfield subdivision regulations provides in pertinent part: “Other evidence shall be submitted establishing that the land to be subdivided is of such character that it can be used for purposes without danger to health or the public safety.”
Section 2.3 of the Fairfield subdivision regulations provides: “Open spaces for parks, playgrounds or recreational areas shall be provided in places deemed proper by the Commission. . . . No loam, fill or natural growth shall be removed from the area reserved for open space, and no foreign matter shall be permanently placed upon said space unless required by the Commission in connection with the grading, construction or development of the subdivision.”
Section 1.4.2 of the Fairfield subdivision regulations provides that the subdivision plan shall be approved once all the conditions of the regulations are met.
Since we conclude that the application did not violate any of the regulations, we need not address the plaintiffs’ claim that the commission improperly approved the application in violation of § 1.4.2 of the regulations on the ground that Fairfield University did not comply with them. Our courts have consistently rejected the notion that a claim of error based on aggregating claims of nonreversible error will result in reversal of the judgment. See State v. Reddick, 33 Conn. App. 311, 338-39, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).